Opinion
Civil Action No. 99-0310-CB-L.
June 12, 2000.
REPORT AND RECOMMENDATION
The Plaintiff brings this action under 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social Security denying his claim for a period of disability and disability insurance benefits.
This action was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Oral argument was heard on May 11, 2000. Upon consideration of the administrative record, oral argument and the memoranda of the parties, it is recommended that the decision of the Commissioner be affirmed.
I. Issues on Appeal .
The Plaintiff presents the following issues on appeal:
1. The ALJ erred by failing to find that the Plaintiff suffered from a severe mental impairment.
2. The ALJ erred in failing to develop a full and fair administrative record because he did not send the Plaintiff for a consultative examination by a cardiologist.
3. The ALJ improperly relied upon a physical capacities evaluation that was completed before the alleged onset date of July 24, 1994.II. Background Facts .
Plaintiff was born September 19, 1954 and at the time of the first administrative hearing he was 42 years old (Tr. 92). He testified that he completed the twelfth grade and had past relevant work as an automotive mechanic on large trucks and tanks for the U.S. Government (Tr. 92, 180). Plaintiff alleged a disability onset date of July 24, 1994 because of herniation of the cervical 6-7 vertebrae (Tr. 92-93; 116-120; 162; 176). On May 22, 1992, his cervical vertebrae were injured in an accident when the tractor-trailer he was driving was struck by a train (Tr. 92-93, 116-120). Plaintiff alleged that this injury caused pain, numbness and weakness in his right hand and right leg (Tr. 95-98). He also alleged continuous headaches with side effects from the medication after the accident (Tr. 95), cardiac problems beginning in 1991 (Tr. 63) and disabling conditions resulting from mental impairments (Tr. 98, 104).
The Plaintiff first applied for a period of disability and disability insurance benefits on December 7, 1995 (Tr. 116-120) and was denied initially and after reconsideration (Tr. 132-136; 149-150). The initial hearing before the Administrative Law Judge (ALJ) was held on November 8, 1996 and present were the Plaintiff, his attorney and a Vocational Expert (VE) (Tr. 53-87). A supplemental hearing was held on March 18, 1997 and present were the Plaintiff, his attorney and a Vocational Expert (Tr. 88-115). The ALJ reached a decision on July 10, 1997 (Tr. 14-41) wherein the Plaintiff was found to have a residual functional capacity which precluded return to past relevant work but had the capacity for the full range of light work reduced by an inability to climb and an inability to reach above shoulder level on more than a frequent basis (Tr. 39). The VE identified a significant number of jobs the Plaintiff could perform which exist in the local and national economy including cashier, meter reader, general retail sales person and security guard (Tr. 40). The ALJ found the Plaintiff not disabled (Tr. 40). The Appeals Council denied review on February 17, 1999 (Tr. 5-6). The hearing decision became the final decision of the Commissioner of Social Security.
III. ALJ Findings
The ALJ found, in pertinent part, as follows: (Tr.39-40).
3. The medical evidence establishes that the claimant has severe herniation of the C6-7 disc, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's ( sic) of disability are not credible in light of his history of medical treatment, in light of the absence of medical treatment for substantial periods of time, in light of the specific physical capacities described by attending physicians, and in light of the testimony of the vocational expert.
5. The claimant has the residual functional capacity to perform the physical exertion and nonexertional requirements of work except lifting and/or carrying objects weighing more than 20 pounds, frequently lifting and/or carrying objects weighing more than 10 pounds, standing and/or walking for more than six to eight hours in an eight hour workday, sitting for more than five to eight hours in an eight hour workday, any climbing and for more than occasional reaching above shoulder level. (20 C.F.R. § 1545).
7. The claimant's residual functional capacity for the full range of light work is reduced by an inability to climb and an inability to reach above shoulder level on more than a frequent basis.
12. Although the claimant's additional nonexertional limitations do not allow him to perform the full range of light work, using the above-cited rules as a framework for decisionmaking, there are a significant number of jobs in the national economy which he could perform. Examples of such jobs are: as testified to by the vocational expert and including jobs as a cashier, as a meter reader, as a general retail sales person, and as a security guard. The testimony of the vocational expert established that jobs within the claimant's residual functional capacity are available in numbers of 20 million within the national economy, 100,000 in the state economy, and 10,000 in the Mobile metropolitan area.
The ALJ also completed a Psychiatric Review Technique form wherein he found that the Plaintiff did not have a medically determinable impairment (Tr. 41).
IV. Discussion A. Standard of Review .
In reviewing claims brought under the Act, this Court's role is a limited one. The Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). The Commissioner's findings of fact must be affirmed if they are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991), citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is defined as "more than a scintilla but less than a preponderance," and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Bloodsworth, 703 F.2d at 1239. The Secretary's decision must be affirmed if it is supported by substantial evidence even when a court finds that the preponderance of the evidence is against the decision of the Secretary. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (1971); Bloodsworth, 703 F.2d at 1239. "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Further, it has been held that the Commissioner's "failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal." Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). This Court's review of the Commissioner's application of legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
B. Statement of the Law
An individual who applies for Social Security disability benefits or supplemental security income must prove their disability. See 20 C.F.R. § 404.1512; 20 C.F.R. § 416.912. The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven their disability. See 20 C.F.R. § 1520; 20 C.F.R. § 416.920. At the first step, the claimant must prove that he or she has not engaged in substantial gainful activity. At the second step, the claimant must prove that he or she has a severe impairment or combination of impairments. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he or she must proceed to the fourth step where the claimant must prove inability to perform their past relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether the claimant has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; (4) the claimant's age, education and work history. Id., at 1005. Once a claimant meets this burden, it becomes the Commissioner's burden to prove at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant's residual functional capacity and age, education, and work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985). If the Commissioner can demonstrate that there are such jobs the claimant can perform, the claimant must prove inability to perform those jobs in order to be found disabled. Jones v. Apfel 190 F.3d 1224, 1228 (11th Cir. 1999); Powell o/b/o Powell v. Heckler, 773 F.2d 1572, 1575 (11th Cir. 1985); Ambers v. Heckler, 736 F.2d 1467, 1469 (11th Cir. 1984). See also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987), citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985).
C. Plaintiff's Argument
The Plaintiff first argues that the ALJ erred by his failure to find that the Plaintiff suffers from a severe mental impairment. Plaintiff relies upon the evaluation of John F. Duffy, Ph.D. (Tr. 286-290), the evaluation of Robert DeFrancisco, Ph.D. (Tr. 295-301), and Plaintiff's testimony in regard to his mental impairment (Tr. 98-99, 104). Plaintiff also relies upon his statements to Dr. Duffy in regard to one past visit to a psychiatrist after his accident and the prescription of an anti-depressant medication by his family doctor (Tr. 287). Plaintiff argues that based on 20 C.F.R. § 416.920a(c) , Dr. Duffy's finding combined with Dr. DeFrancisco's finding that he once or twice experienced deterioration and decompensation in work or a work-like setting indicates that his mental impairment should be considered as severe. Plaintiff argues that the ALJ erred by rejecting the opinions of the psychologists and substituting his own opinion in regard to the Plaintiff's mental impairment. Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir. 1982); Marbury v. Sullivan, 957 F.2d 837, 840-841 (11th Cir. 1992).
There are no medical records of the past psychiatric visit and review of his interview with Dr. Duffy shows that the Plaintiff stated that the anti-depressant medication was prescribed for "sleep onset difficulties" and not for treatment of depression or mental illness (Tr. 287).
Since the Plaintiff is applying for social security disability insurance as opposed to supplemental security income, the correct regulation is 20 C.F.R. § 404.1 520a(c). However, these regulations are identical.
20 C.F.R. § 404.1520a(c), provides that if the fourth area of function (deterioration or decompensation in work or work-like settings) is rated as "never" then "we can generally conclude that the impairment is not severe."
At the initial hearing on November 8, 1996, the Plaintiff's attorney informed the ALJ that a psychological evaluation with Dr. Duffy was scheduled for November 12, 1996 (Tr. 56). The record was kept open for the additional evidence and the Plaintiff was sent for a consultative evaluation with Dr. DeFrancisco. The second hearing was held in March 1997 at which time the Plaintiff testified in regard to his mental impairment (Tr. 98-99, 104).
Review of the record shows that the Plaintiff did not allege a mental impairment in his initial application or on reconsideration (Tr. 172-175). His termination notice from the Alabama State Military Department did not mention a mental impairment as the basis for his termination (Tr. 192-194). There are no medical records of diagnosis or treatment for a mental impairment. However, on January 14, 1994, Eric C. Schiller, M.D. of Anesthesia and Pain Management, P.C., wrote to Robert L. White, M.D., neurosurgeon, the Plaintiff's treating physician who had referred him to Dr. Schiller, that the Plaintiff reported past receipt of an anti-anxiety medication for his heart (Tr. 304). Dr. Schiller noted the Plaintiff's statement that the anti-anxiety medication had "basically taken care of the problem but he is no longer on this medication and it does not appear to be an active condition" (Tr. 304). Dr. Schiller injected the Plaintiff in the neck and shoulders and prescribed Elavil 25 mg (Tr. 304). There are no medical records of treatment of his alleged heart condition with anti-anxiety medication.
On November 18, 1996, the Plaintiff, at the request of his attorney, was examined by Dr. Duffy (Tr. 286-290). Dr. Duffy administered the Minnesota Multiphasic Personality Inventory (MMPI) and performed a clinical interview. In his interview, he told Dr. Duffy that he saw a psychiatrist one time after, the accident but that he did not find it helpful. He also stated that he took an anti-depressant medication for "sleep onset difficulties" which he used as needed (Tr.287).
Dr. Duffy noted that the Plaintiff had problems with his attitude on the job prior to the accident and related the Plaintiff's statement that the Government was an unfair system to work for and that he often felt angry and frustrated. The Plaintiff reported that he had filed EEO complaints and won. He also reported one or two reprimands during the past fifteen years on the job, but after the accident and during his last six months at work, he had received five or six reprimands. He acknowledged that he had a more negative attitude toward work, was more short-tempered, and that he had learned to walk away from situations which might anger him (Tr. 287).
Dr. Duffy found the Plaintiff gave a valid profile on the MMPI and the results were stated as follows:
These profiles are typically described as involving a focus on somatic difficulties in a person with characterological problems that are often described as passive aggressive. These persons are often angry, resentful, manipulative, and demanding. These profiles are seen more often in persons who sue for malpractice against doctors than other types of profiles. They view themselves as having significant health problems that interfere with their ability to work. Many times the physical complaints or symptoms are hard to correlate with actual physical test findings. These persons often have difficulty getting along with others due to temper problems and lack of depth or empathy in relationships.
(Tr. 288). In summary, Dr. Duffy noted as follows:
This is a gentleman who openly acknowledges a history of anger and temper difficulties. He is very resentful about his former work place and employers and this interfered with his ability to resume work successfully. Whatever physical problems and pain problems exist are very likely exacerbated by the emotional component of feelings of depression and anger.
(Tr. 288).
In the mental residual functional capacity, Dr. Duffy found that the Plaintiff had no restrictions of daily living; a moderate difficulty in maintaining social functioning; would seldom experience deficiencies of concentration, persistence and pace; would seldom experience episodes of deterioration or decompensation in work or work-like settings; a mild limitation in the ability to understand, carry out and remember instructions; a marked limitation in the ability to respond appropriately to supervision in a work setting; a moderate limitation in the ability to respond appropriately to co-workers; and no limitation in his ability to perform simple or repetitive tasks (Tr. 298-290).
On December 16, 1996, the Plaintiff was consultatively evaluated by Dr. DeFrancisco (Tr. 295-301). Dr. DeFrancisco interviewed the Plaintiff and administered the Wechsler Adult Intelligence Scale. The Plaintiff obtained a verbal IQ of 93, a performance IQ of 79 and full scale IQ of 86 (Tr. 296). He described the Plaintiff as "interactive, friendly" and without history of mental retardation (Tr. 296). He noted that Plaintiff arrived for the examination on time and was oriented to person, place, date, time and situation. He also noted that the Plaintiff's "[a]ppearance and behavior during the examination were normal. He related quite well. His thought processes were normal. There was no evidence of psychotic aberration". Dr. DeFrancisco found "no significant mental impairment." (Tr. 295-297).
Dr. DeFrancisco completed a mental residual functional capacity evaluation wherein he found the Plaintiff had slight limitations in activities of daily living; no limitations in social functioning; would seldom experience deficiencies of concentration, persistence and pace; had experienced two episodes of deterioration or decompensation in a work or work-like setting; no difficulty in understanding, remembering and carrying out instructions; no difficulty responding appropriately to supervision or co-workers; and mild difficulty responding appropriately to customary work pressures and performing simple or repetitive tasks (Tr. 299-300). Dr. DeFancisco's evaluation is consistent with a finding of no severe impairment under § 404.1520a(c), except in the fourth area. However, § 404.1520a(c) does not mandate a finding of severe if there are one or two episodes of deterioration, rather, it provides that the impairment is not severe if there are "never" episodes of deterioration or decompensation at work.
The ALJ found that the Plaintiff did not have a mental impairment (Tr. 41). In reaching his decision, he discussed the reports of Dr. Duffy and Dr. DeFrancisco (Tr. 24-25), the Plaintiff's testimony in regard to his mental impairment (Tr. 31-32), and the vocational experts testimony in regard to the effect of the alleged mental impairments upon the Plaintiff's ability to work and the jobs available to the Plaintiff (Tr. 32-34). The ALJ found that although Dr. Duffy "interpreted testing as consistent with individuals with a high focus on somatic difficulties and as characteristic of individuals who are described as passive aggressive, the report from Dr. Duffy did not diagnose any specific mental or emotional impairment" (Tr. 35). The ALJ also noted that Dr. DeFrancisco found no significant mental impairment despite some restrictions in the Plaintiff's functional assessment (Tr. 35). The ALJ also noted that the reports of the Plaintiff's treating physicians since 1990 did not "establish any mental symtomatology relating to any underlying impairment" (Tr. 35). The ALJ then concluded that `[a]bsent any medical diagnosis related to mental or emotional impairments, and absent a history of severe mental or emotional symptomatology, the [ALJ] finds that the claimant does not have a medically determinable mental impairment" (Tr. 35).
The undersigned finds that upon review of the record as a whole, substantial evidence supports the ALJ's determination that the Plaintiff did not have a severe mental impairment. A severe impairment is one which "significantly limits [the Plaintiff's] physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c), 416.920(c). The Eleventh Circuit has established that "an impairment can be considered as "not severe' only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience." Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984). Also in McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) the Brady analysis was discussed as follows:
At step two of § 404.1520 and § 416.920, a claimant's impairment is determined to be either severe or not severe. Step two is a threshold inquiry. It allows only claims based on the most trivial impairments to be rejected. The claimant's burden at step two is mild. An impairment is not severe only if the abnormality is so slight and its effect so minimal that it would clearly not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience. Claimant need show only that her impairment is not so slight and its effect is not so minimal.Id. at 1031.
Pursuant to Bridges v. Bowen, 815 F.2d 622, 625-626 (11th Cir. 1987), if an impairment causes only mild effects on a claimant's ability to work, or is amenable to medical treatment, it may be found not severe. Additionally, 20 C.F.R. § 404.1520 states that an impairment is not severe "if it does not significantly limit your physical or mental ability to do basic work activities."
At step two of the inquiry, the burden of proof is on the Plaintiff to prove that an impairment is severe and more than a mere, slight abnormality. Brady v. Heckler, 724 F.2d 914, 920 (11th Cr. 1987). The undersigned finds that the Plaintiff did not meet his burden of proving that his mental impairment is more than a mere, slight abnormality. As discussed herein, the administrative record contains no record of treatment for mental impairment or illness. The medical record consists of the consultative examinations of two psychologists, neither or whom had a treating relationship with the Plaintiff. As discussed previously, neither examiner diagnosed a specific mental disease, illness or impairment which would significantly affect the Plaintiff's ability to perform basic work activities. Dr. Duffy found slight or mild limitations of basic work activities except for a "marked" limitation of the ability to appropriately respond to supervision and a "moderate" limitation of inability to respond appropriately to co-workers. It appears that Dr. Duffy's assessment of the Plaintiff's difficulties at work was based solely upon information provided to him by the Plaintiff. There is no indication in the records received from his employer of any instances of inappropriate responses to supervision or co-workers, or of episodes of deterioration or decompensation in work or work-like settings. Also, Dr. Duffy's stated that the Plaintiff had learned to "walk away from" situations which angered him (Tr. 287). In contrast, Dr. DeFrancisco found the Plaintiff would have no limitation in responding appropriately to supervision or co-workers and found only mild or slight limitations of basic work activities (Tr. 300). Moreover, Dr. DeFranciso found that the plaintiff did not have a "significant mental impairment". (Tr. 297).
The Plaintiff next argues that the ALJ erred in failing to develop a full and fair administrative record by failing to send the Plaintiff for a consultative examination by a cardiologist. The Plaintiff bases this argument upon a statement made by the ALJ during the initial hearing. After the Plaintiff's attorney explained the difficulty encountered in obtaining the Plaintiff's past medical records from the military, the ALJ responded, "Okay, we'll just do a cardiological CE then" (Tr. 68). The military medical records were provided to the ALJ prior to the second hearing (Tr. 196-197; 225-232). The Department of Disability Services referred the Plaintiff to Mohammed A. Nayeem, M.D., family practice, (Tr. 26 1-265), J.T. Jones, M.D., internal medicine, (Tr. 266-268) and Thomas H. Lane, M.D. internal medicine (Tr. 292-294) for consultative evaluations.
On November 30, 1990, the Plaintiff was admitted to the Army Medical Center in Landstuhl, Germany after experiencing "chest tightness while on active duty in Operation Desert Storm (Tr. 196-197). In his narrative summary, Farley B. Neasman, M.D., Chief, Cardiology Services, noted his final impression of "noncardiac symptoms" and noted "no evidence" of myocardial infarction, mitral valve prolapse or idiopathic hypertrophic subaortic stenosis (Tr. 197). Dr. Neasman returned the Plaintiff to full duty in Saudi Arabia without restrictions (Tr. 197).
On December 20, 1990, the examining physician at the 85th Evac.
Hospital noted an impression of "(1)chest wall pain — definite, non-anginal (2) no m [sic] heard today . . . no pathologic murmur" (emphasis in original) (Tr.232).
The Plaintiff was admitted on complaints of chest pain to the Monroe County Hospital on September 5, 1993 and discharged on September 7, 1993. (Tr. 233-239). After evaluation of his EKG, cardiac enzymes and echocardiogram, he was discharged with a diagnosis of "atypical chest pain, probable gastrointestinal in nature" (Tr. 234). No medications were prescribed and his condition and prognosis were listed as "good" (Tr. 234). The Plaintiff's EKG and cardiac enzymes revealed no myocardial infarction and he had an unremarkable treadmill test (Tr. 234).
On November 8, 1993, the Plaintiff was examined at the University of South Alabama Health Service Foundation Department of Internal Medicine by Martin A. Alpert, M.D., cardiologist. Dr. Alpert noted his impression as "chest pain, r/o cardiac orig" (sic). He ordered a series of tests to occur on November 23, 1993. However, the only test records submitted by the Plaintiff for this examination was an EKG and chest x-rays; all of which were interpreted as normal (Tr. 240-242).
On January 17, 1996, the Plaintiff was consultatively examined by Dr. Nayeem who performed a physical examination, x-rays of the cervical spine and completed a range of motion evaluation chart (Tr. 261-265). Dr. Nayeem made no notations in regard to the Plaintiff's alleged cardiac condition.
On May 21, 1996, the Plaintiff was consultatively examined by Dr. Jones on his complaint of a heart murmur (Tr. 266-268). Dr. Jones noted the Plaintiff's statements of his past medical history and his present complaint of chest pains. Upon examination of the Plaintiff's heart, Dr. Jones noted "[n]o clinical cardiomegaly, regular rhythm, no significant murmurs are heard. No rubs or gallops. Questionable intermittent click" (Tr. 267). Dr. Jones interpreted the EKG and found a "[m]inor non-specific t-wave flattening in the lateral leads borderline left axis deviation otherwise normal tracing" (Tr. 267-268). He also noted "1. History of heart murmur although I was unable to detect any significant murmurs on examination today 2. Chest pain somewhat atypical for angina 3. Questionable history cardiac dysrhythmia" (Tr. 267). He stated that the Plaintiff was capable of performing sedentary work, but not his past work as a mechanic or strenuous work (Tr. 267).
On December 13, 1996, the Plaintiff was consultatively examined by Thomas H. Lane (Tr. 292-293). Dr. Lane noted the Plaintiff's statements in regard to his past medical history of treatment for a heart condition in Saudi Arabia. The Plaintiff related to Dr. Lane that his heart had stopped and that a "detailed evaluation" revealed "some type of rhythm disturbance and the patient can not be more specific than that" (Tr. 292). Dr. Lane noted the Plaintiff's statement that "[b]ack in the States, he had an evaluation and had atypical chest pain, mitral valve prolapse on Echocardiogram. He has never to his knowledge had chest pain with exertion, myocardial infarction, documented dysrhythmias, etc." (Tr. 292). On examination he found "[n]o gallops, rubs. Grade 1/6 systolic ejection murmur" (Tr. 293). His impression was "1. Mitral valve prolapse 2. Atypical chest pain 3. History of cardiac dysrhythmia" (Tr. 293). Dr. Lane then completed a physical capacities evaluation consistent with. light work but indicated a limitation on fine manipulation with the right hand (Tr. 294).
In regard to the allegation of cardiac problems, the ALJ discussed the military medical records, emergency room visits and consultative examinations (Tr. 18, 19, 21-23, 25), and the Plaintiff's testimony at the first (Tr. 26-28) and second hearing (Tr. 31-32). The ALJ noted that "the record did not reveal any objective findings concerning his heart and that testing had been normal" (Tr. 27). Review of the medical records in regard to the cardiac evaluations of the Plaintiff indicate that he has not been diagnosed with or treated for a heart condition. At the second hearing in March 1997, the Plaintiff testified that he was not receiving treatment for a cardiac condition and that he had not seen a doctor for his heart since 1994 (Tr. 103).
The undersigned finds that the ALJ did not err in failing to send the Plaintiff to a cardiologist for a consultative examination. The Plaintiff was examined by Dr. Jones, a specialist in internal medicine. Dr. Jones found no cardiological impairment. His findings in combination with the records supplied from the Plaintiff's military service which indicate no significant cardiac problem, hospital emergency room visits which made no finding of cardiac problems and the normal findings on examination by Dr. Alpert who is a cardiologist, constitute sufficient medical records upon which the ALJ could reasonably conclude that there was no need for the purchase of further consultative cardiac examinations. The ALJ has complete discretion over consultative testing, and such tests are only required when necessary to make an informed decision about disability. 20 C.F.R. § 404.1519a; Reeves v. Heckler, 734 F.2d 519, 522 n. 1 (11th Cir. 1984).
At oral argument, the Plaintiff additionally argued that the ALJ improperly relied upon a physical capacities evaluation that was completed before the alleged onset date of July 24, 1994. The ALJ found that the, November 13, 1993 report from Dr. White, the Plaintiff's treating neurosurgeon, (Tr. 314-315) was "most consistent with the claimant's history of medical treatment and those limitations [were] consistent with light work activity on a sustained basis" (Tr. 34). The ALJ also noted that there was "no indication of any deterioration or change with respect to the claimant's impairments" (Tr. 34) and found that "the claimant retains the residual functional capacity for light work as described by Dr. White in Exhibit 45, pages 7 and 8" (Tr. 35).
The Plaintiff argues that the subsequent evaluations by Dr. Nayeem, Dr. Jones and Dr. Lane indicate a worsening of his condition especially in regard to the use of his right hand and do not support the ALJ's determination that the Plaintiff can perform light work with restrictions.
Review of the record shows that the accident from which the Plaintiff claims his disabling condition arose occurred on May 20, 1992. During the time period between the accident and the completion of Dr. White's physical capacities evaluation of November 13, 1993, the Plaintiff was treated by Dr. White. The selection of July 24, 1994 as the date for the onset of disability appears more related to the termination of the Plaintiff from his job with the military than because of a change in his physical condition. The record and the Plaintiff's testimony indicate that he did not return to his job as a mechanic but was given a light duty job until such time as he qualified for full retirement. He was then officially terminated on July 23, 1994 (Tr. 80, 192-193).
The evaluation by Dr. Nayeem was referenced by the Plaintiff to indicate a worsening of the condition of this right shoulder, arm and hand and the atrophy of his right thigh. However, Dr. Nayeem noted as follows:
This man did not move his neck and did not move his shoulder all the way up to perform full abduction. He did not squeeze the right hand with the same strength that he did with his left hand and gave a history of loss of gross manipulation. These are all subjective findings, which are very difficult to correlate. The only positive finding on physical examination is mild atrophy of the right thigh muscles, which is probably due to lack of use of the right thigh, due to fear of an old accident, approximately 4 or 5 years ago.
(Tr. 262-263). Also, Dr. Nayeem's x-ray of the cervical spine was normal. (Tr. 262). While Dr. Nayeem found traumatic arthritis in the cervical spine and right shoulder, he noted the right pinch and grip strength was reduced to only 4/5 out of a possible 5/5, fine manipulation was intact but gross manipulation was weak. He also noted that the "graded strength of the major muscle groups is slightly weak in the right forearm" which results in weakening of grip on the right arm (Tr. 262).
In his evaluation of May 21, 1996, Dr. Jones noted that the Plaintiff's grip strength on the right was 4/5, that he could "oppose the fingertips and thumbs of both hands without difficulty," and could "pick up three coins off the tabletop with each hand without difficulty" (Tr. 267).
Dr. Lane's consultative examination of December 13, 1996, noted "minimally diminished abduction/adduction of the right shoulder with 4/5 strength in the right hand at the right biceps. There are symmetrical muscle group measurements in the forearms, biceps, thighs, calves. The patient can oppose the thumb and all fingers. . . . The patient can turn a doorknob, hold a pencil, shuffle papers with both hands." (Tr. 293). He noted a limitation of fine manipulation of the right hand on his physical capacities evaluation. Otherwise, the evaluation is consistent with the ability to perform light work (Tr. 294).
An MRI of the Plaintiff's cervical spine performed on November 13, 1996, at the request of Dr. White, showed "no significant change in the small disc herniation at C6-7" when compared to the prior MRI (Tr. 308). The radiologist noted his impression as follows: Very small left paracentral posterior disc herniation at C6-7. This is seen best on the axial images and does not appear to be causing any significant nerve root impingement. No other abnormality seen (Tr. 308). Additionally, the MRI showed "no evidence of fracture or subluxation. There is no evidence of significant arthritic disease" (Tr. 310). As the ALJ found, the treatment notes of Dr. White for 1994 and 1996 do not indicate a change in condition and this decision is supported by the objective, clinical MRI testing. Dr. White does not note complaints of loss of gross or fine manipulation, or muscle strength in any of his three treatment notes of January 5, 1994 (Tr. 313), February 16, 1994 (Tr. 312) and November 6, 1996 (Tr. 311).
Additionally, in reaching his decision to rely upon the physical capacities evaluation of Dr. White, the ALJ noted that the Plaintiff continued to engage in light work after his accident on May 20, 1992 and before his alleged onset date of July 24, 1994 (Tr. 34). He also noted the reports of Robert Manolakas, M.D. and Dr. White, both of whom treated the Plaintiff after his accident, and noted that "both submitted physical abilities assessments consistent with light work within twelve months of the [Plaintiff's] accident" (Tr. 34). He also noted that the "record does not refer to treatment for any impairment from May 1994, two months prior to the alleged onset date, until November 1996" and that the Plaintiff "was seen by two physicians at the request of the Social Security Administration, but did not seek treatment for his complaints during that period of time" (Tr. 34). He noted that when the Plaintiff did return to Dr. White, testing showed "no progression of his herniated disc" (Tr. 34).
Upon review of the medical evidence and the record, the undersigned finds that the ALJ did not err in relying upon the physical capacities evaluation prepared by the Plaintiff's treating physician prior to the alleged onset date to determine the Plaintiff's residual functional capacity. The only objective medical tests of record which document the Plaintiff's neck injury, the MRI results in Dr. White's records, indicate that the herniation had not changed and showed no significant arthritis despite Dr. Nayeem's finding that the Plaintiff had traumatic arthritis in his neck and right shoulder. Also, Dr. Nayeem obtained a normal x-ray of the Plaintiff's cervical spine during his consultative examination.
The determination of a Plaintiff's residual functional capacity is within the province of the ALJ. 20 C.F.R. § 404.1546, 416.946. The assessment must be based upon all of the relevant evidence of the Plaintiff's remaining ability to do work despite his impairments. See Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R. § 404.1545(a)). The decision shows that the ALJ relied upon all evidence of record, including but not limited to the physical capacity evaluations, Plaintiff's testimony, objective clinical tests, and the testimony of the vocational expert, in addition to the physical capacities evaluation of Dr. White. The undersigned finds that the determination by the ALJ that the Plaintiff has the residual functional capacity for light work with limitations is supported by substantial evidence.
V. Conclusion
For the reasons set forth, and upon consideration of the administrative record, the hearing decision, memoranda of the parties and oral argument, it is recommended that the decision of the Commissioner denying the Plaintiff's claim for disability insurance benefits and a period of disability be affirmed.
The attached sheet contains important information regarding objections to this report and recommendation.
Done this 12th day of June, 2000.